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Joma & Anr vs State on 3 November, 2011

Rajasthan High Court – Jodhpur Joma & Anr vs State on 3 November, 2011

D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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J U D G M E N T

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APPELLANTS: RESPONDENT : Joma and another v. State of Rajasthan D.B. CRIMINAL APPEAL No.705 OF 2005

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Date of Order : 03 rd November 2011

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PRESENT

HON’BLE MR JUSTICE GOVIND MATHUR

HON’BLE MR JUSTICE NARENDRA KUMAR JAIN-II Mr B.S. Rathore, for the appellants

Mr K.R. Bishnoi, Public Prosecutor

BY THE COURT {Per Justice Narendra Kumar Jain-II}: Heard the learned counsel for the appellants as well as learned Public Prosecutor.

2)This appeal under sec.374 (2) CrPC is preferred to question the correctness of the judgment dated 30th November 2004 passed by the learned Additional Sessions Judge, Fast Track No.1, Sirohi camp at Abu Road in Sessions Case No.125/2003 (74/2003)- State v. Joma & others, convicting the accused-appellants -Joma s/o Ladu Grasiya and Kheta s/o Ladu Grasiya for the offence punishable under sec.302 read with sec.34 IPC and each of the accused-appellants has been sentenced to undergo life D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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imprisonment, along with fine of Rs.5000/- each and in default of payment whereof to further undergo one year’s imprisonment.

3)In brief, the facts of the case are that on 18.08.2003 complainant Roopa s/o Bhopa Grasiya, r/o Upla Sabela made an oral report (Ex.P11) at 9:30PM at Police Station- Pindwara, to this effect on that evening around 4:30PM he, his father Bhopa Ram and grand-father Rataji were taking out stones for construction of house of his uncle Bhoora. There has been old litigation between them and sons of Ladu – Kheta, Khuma, Koosa, Mana, Jomla; who also belong to their family.

4)It is alleged that on account of this enmity, all these persons came, armed with sword, lathi, knife etc and assaulted to beat us. As soon they come, these assailants attacked with their weapons to kill my father Bhopa Ram and grand-father Rata, who sustained many wounds. Upon this assault, my grand-father Rata fell down on the spot while my father ran to escape but these persons caught him and further assaulted him, due to which he also suffered many wounds and fell down.

5)Upon hue & cry of this assault, complainant’s mother Somi and grand-mother Lado etc came then these persons gave beating to them also. The assailants ran after complainant and his uncle Bhoora but they escaped from there. After these assailants went from there, when D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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complainant looked upon his father and grand-father, he found that much blood drifted from their body and both have died. Dead bodies are lying at the site. The complainant stated that he came on foot to report that these five persons assaulted and killed his father Bhopa Ram and grand-father Rata.

6)On the basis of this oral intimation, FIR No.266/18.08.2003 (Ex.P30) was registered, about commission of offence punishable under secs.147, 148, 149, 302, 447, 323 IPC against above named five persons. Khuma and Mana could not be arrested, therefore, investigation qua them was kept in abeyance while after due investigation, challan was filed against Ladu s/o Moti and Kusa, Joma & Kheta – sons of Ladu for offence under secs.148, 302/149, 447, 323/149, 325/149 IPC. On 20.03.2004 charges were framed against these accused- persons, all the accused denied commission of alleged crime by them and claimed trial.

7)During the trial, the prosecution supported its case by producing 14 witnesses and exhibiting 42 documents. The statements of accused-persons were recorded under sec.313 CrPC, the accused-appellant negated the prosecution evidence and contended that they have been flasely implicated out of enmity. In their defence, DW1 Mana s/o Chopa was examined and in documentary evidence, Police statement of Bhoora (Ex.D1) and Police D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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statement of Smt. Somi (Ex.D2) were adduced by the accused-persons.

8)The learned Additional Sessions Judge, while relying upon testimony of the prosecution witnesses, acquitted Ladu s/o Moti Grasiya and Kusa s/o Ladu Grasiya from all the alleged offences while though acquitted accused-appellants Joma and Kheta – sons of Ladu Grasiya s/o Ladu from charge of offence punishable under secs.148, 323/149, 325/149, 447 IPC but convicted them for commission of offence punishable under sec.302 read with sec.34 IPC and sentenced them in the terms mentioned herein above, vide impugned judgment dated 30.11.2004. Aggrieved thereby, present appeal has been filed.

9)In the appeal, it is submitted by the learned counsel for the accused-appellants that the testimony of PW6- Dr Suresh Mathur, who conducted the postmortem as also testimony by other witnesses do not get corroboration and in the circumstances, presence of eye-witness on the spot becomes doubtful. It is contended that there are major contradictions, omissions and improvement in the prosecution evidence.

10)Learned counsel for the accused-appellants further contended that learned trial Judge committed grave error in relying upon testimony of relative and interested prosecution witnesses. It is contended that there is no specific allegation against accused-appellants about causing D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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specific injuries to deceased persons and there are only omnibus statement by the witnesses. It is also contended that co-accused Kusa and Ladu have been acquitted by the trial court and case of the accused-appellants stands on the same footing and hence, in the interest of justice, the accused-appellants too deserve to be acquitted. 11)While opposing the appeal, learned Public Prosecutor supported the impugned judgment passed by learned Additional Sessions Judge (FT) No.1, Sirohi camp at Abu Road and submitted that there is no reason to disbelieve the prosecution evidence of the eye-witnesses PW2 Bhura s/o Rata (deceased), PW3 Mst Somi w/o Bhupa (deceased) and PW4 Roopa s/o Bhupa (deceased). It is submitted that eye-witnesses Roopa, Bhura and Mst Somi have supported the prosecution case and there is neither any improvement nor any material contradiction or omission and they are natural and reliable witnesses in the facts and circumstances of this case. The incident occurred on 18th August 2003 at about 4:30PM and the FIR was lodged at about 9:30PM. In such a short period, there is no possibility to implicate the accused persons falsely nor could it have been so concocted by natural witnesses produced by the prosecution in the matter.

12)Learned Public Prosecutor further vehemently submitted that, in fact, it is a case fully proved by the prosecution and guilt is proved beyond any shadow of doubt against the accused-appellants and there is no reason to disbelieve the D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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prosecution evidence. Learned trial Judge has elaborately considered each of the prosecution and defence evidence and rightly convicted and sentenced the accused-appellants for offence under sec.302/34 IPC. Hence, present appeal of the accused-appellants lacks merit and the same is liable to be dismissed.

13)We have considered submissions of learned counsel for the accused-appellants as well as learned Public Prosecutor and also gone through entire evidence adduced by both the parties in the matter as also the record of the trial court. 14)It is clear from the oral report made by Roopa s/o Bhupa Grasiya r/o Upla Sabela, which was reduced in writing (Ex.P11), submitted to the Sub-Inspector, In-charge of the Police Station- Pindwara, district- Sirohi, Mr Munawwar Khan (PW10) on 18th August 2003 at 9:30PM, that at about 4:30 in the evening, he along with his father Bhupa Ram and grand-father Rataji were taking out stones for construction of house of his uncle. At that time, Kheta, Khuma, Koosa, Mana, Jomla all sons of Ladu Grasiya, r/o Upla Sabela, armed with lathis, swords and other weapons came there and gave beating to his father Bhupa and grand- father Rataji and because of this beating, his father Bhupa and grand-father Rata became unconscious. Upon hearing cries, they rushed and intervened. His father Bhupa and grand-father Rata died on the spot.

15)Upon this oral report, FIR Ex.P30 was registered under D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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secs.147, 148, 149, 302, 447, 323 IPC against Kheta, Khuma, Koosa, Mana and Jomla – all sons of Ladu Grasiya (5 persons). It is admitted position that Ladu s/o Moti Grasiya was not named in the First Information Report but after investigation, charge-sheet was filed by Police against Joma, Koosa and Kheta – all sons of Ladu and Ladu s/o Moti Grasiya, r/o Upla Sabela, Pindwara. Upon trial, Koosa and Ladu Grasiya were acquitted and while Joma and Kheta – present accused-appellants were convicted. 16)It is also admitted position that Khuma and Mana could not be arrested till now, as per prosecution. In this way, it is clear that Roopa informed to Police about the incident on the same day at 9:30PM and in the facts and circumstances of this case, report was promptly lodged with the Police, without any delay.

17)It is undisputed that deceased Bhupa s/o Rata and Rata s/o Moti Grasiya met with homicidal death due to the injuries caused in this incident. Postmortem on the body of Bhupa was conducted on 19th August 2003 at the Government CHC Hospital, Pindwara and as per postmortem reprot (Ex.P17) and statement of PW6 Dr Surendra Narain Mathur, following injuries were found on the dead body of Bhupa s/o Rata Grasiya:

i] incised wound 5 cm x 1 cm x bone deep on the middle of forehead (upper side). On dissection, no fracture of bone found.

ii] Lacerated wound 3cm x ½ cm x ½ cm on D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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the Rt cheek near Rt eye

iii] Incised wound 2cm x ½ cm x ½ cm on the Lt side of upper lip

iv] Incised wound 8cm x 2cm x bone deep on the Lt shoulder. On dissection “fracture of Left chronicle bone” found underneath the injury v] Stab wound 2cm x 1cm x 2cm on the outer side of upper 1/3 of Lt arm.

vi] Incised wound 5cm x 1cm x 1cm on the middle 1/3 of outer side of the Rt forearm vii] Stab 2cm x 1cm x bone deep on the upper side of Lt scapular region. On dissection, no fracture of scapular bone seen

viii] Incised wound 3cm x 1cm x 1cm on the back of the neck

ix] Stab wound 3cm x 2cm x Lung tissue deep just below the lower side of Lt scapular region. On dissection, punctured wound present on the lobe of Lt Lung underneath the injury

x] Stab wound 2cm x 1cm x bone deep below the Lt. Scapular region (near injury No.(ix). On dissection, fracture of 10th rib found underneath the injury

xi] Stab wound 3cm x 1cm x Lung tissue deep on the outer side of Rt scapular region (near posterior axillary line) on upper side. On dissection, punctured wound present on the middle lobe of the Rt Lung underneath the injury xii] Stab wound 2cm x 1cm x bone deep middle of the Rt scapular region. On dissection, “fracture of 8 th rib” found underneath the injury xiii] Incised wound 3cm x 1cm x 1cm on the lower side of the Rt scapular region

xiv] Incised wound 5cmx 1cm x 1cm on the D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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back (horizontally) on the back (Rt Lumbar region)

– Pleural cavity is full of blood.

– All the injuries (i) to (xiv) are ante-mortem in nature 18)The cause of death of Bhupa, as per Medical Officer, was on account of hemorrhage and shock due to multiple injuries to lungs and other sites and the injuries No.(ix) & (xi) were sufficient to cause death in the ordinary course of nature.

19)The postmortem report of Rata s/o Moti Grasiya was also conducted on 19 th August 2003 by PW6 Dr Mathur and as per postmortem report Ex.P18, following injuries were found on the body of Rata Grasiya:

i] Lacerated wound 3cm x 1cm x bone deep is present on the Lt side on the forehead. On dissection, “fracture of frontal bone” underneath the wound found. On further dissection, membrane underneath the fractured bone found congested.

ii] Lacerated wound 4cm x 2cm x bone deep on the back of the scalp. On dissection, “fracture of occipital bone” underneath the injury found. On further dissection, membrane underneath the wound is congested.

iii] Incised wound 6cm x 1cm x ½ cm on the back of upper ½ of Left forearm, simple and sharp in nature

iv] Swelling 10cm x 5cm on the upper 1/3 of Left arm. On dissection, large amount of clotted blood found. On cleaning the clotted blood, “fracture of Left Humerus bone” on upper end found.

D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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v] Stab wound 1cm x ¾ cm x 2cm on the outer side middle 1/3 of Left forearm. Simple, sharp in nature.

vi] Swelling 8cm x 4cm on the upper 1/3 of Rt arm. On dissection, large amount of clotted blood found. On cleaning, the “fracture of upper part of Rt Humerus bone” seen.

vii] Lacerated wound 1cm x ½ cm x ½ cm on the back of Rt elbow

viii] Swelling 5cm x 5cm on the back of the middle 1/3 of Rt forearm. On dissection, clotted blood found. On cleaning the clot, “fracture of middle part (shaft) of the Radius bone” found ix] Swelling all over the middle 1/3 of Rt thigh. On dissection, large amount of clotted blood found. On cleaning, the clotted blood, “fracture of shaft of the Rt Femur bone” found

x] Lacerated wound 2cm x ½ cm x ½ cm on the front of middle 1/3 of Rt leg

xi] Incised wound 6cm x ½ cm x ½ cm on the outer side of lower 1/3 of Lt thigh. Simple & sharp in nature.

All the injuries from (i) to (xi) are ante-mortem in nature.

20)The cause of death of Rata, as per Medical Officer, was on account of hemorrhage and shock due to multiple injuries on his body.

21)During the trial, prosecution supported its case by producing three witnesses- PW2 Bhura s/o Rata, PW3 Mst Somi and PW4 Roopa as eye-witness of this incident. PW1 Bhoma was cited as witness of site plan Ex.P1 and various D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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other memos (Ex.P2 to P9), PW5 Ram Kishan was cited as witness of arrest memo of accused Koosa (Ex.P12). PW6 Dr Surendra Narain Mathur and PW7 Dr Bhagwan Sahai were cited for medical evidence of injury report Ex.P10 of Smt. Somi (PW3) and Ex.P13 (injury report of Mrs Ladu). Dr Bhagwan Sahai was cited as Radiologist of injuries of Mrs Lado. PW8 Jugal Kishore Vyas was cited as Circle Patwari. PW9 Dalpat Ram was cited as Motbir of recovery of Kulhari from accused Kheta. PW11 Amar Singh and PW12 Ganpat Singh, Head Constables were cited as in-charge Malkhana for Ex.P39 & Ex.P40, entries of the Malkhana register. PW13 Thana Ram was Constable from SP Office, PW14 was cited as carrier of articles to the FSL (Ex.P41). PW10 Anwar Khan, Sub Inspector was cited as the Investigation Officer. 22)Present case rests upon the evidence of eye-witnesses – PW4 Roopa s/o Bhupa who lodged First Information Report of this incident, PW3 Mst Somi w/o Bhupa who also sustained injuries in this incident and PW2 Bhura s/o Rata. We have perused statements of Roopa, Mst Somi and Bhura and found that they have categorically and in unequivocal terms deposed that they saw the incident, Joma & Khema both accused-appellant came on the site armed with weaspons and gave beating to Bhupa and Rata and because of that beating, Bhupa and Rata died on the spot. Then PW4 Roopa informed to Police at Pindwara. There is no reason to disbelieve testimony of the eye-witnesses. We have carefully gone through their evidence and the evidence of D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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these witnesses does inspire confidence and faith. Minor discrepancies, contradictions, omissions or improvement are bound to occur.

23)It is admitted fact that all above witnesses were poor, illiterate villagers, by caste Grasiya – a Scheduled Tribe. In Hardeo v. Harbhej Singh (AIR 1997 SC 1487), Hon’ble Apex Court held that trifling discrepancies must be ignored as natural discrepancies occur with honest witnesses. There may be discrepancies of truth as well as of falsehood. In the case of honest witnesses, discrepancies are due to difference in individual’s power of observation, recollection, reproduction and recitation and not due to deliberate attempt to suppress or depart from the truth. The broad facts of the case are not minor details have to be considered in weighing the evidence. Consideration may be given to the situation in life, status, educational background and way of life of the witness.

24)In Kulesh Mandal v. State of West Bengal (AIR 2007 SC 3228), Hon’ble Supreme Court held that normal discrepancies are those which are due to normal errors of observation, of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence; which are always there, however honest and truthful witness may be. Material discrepancies are those, which are not normal and expected of a normal person. 25)In State of Rajasthan v. Om Prakash (AIR 2007 SC D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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2257), Hon’ble Apex Court held that improvements made by the witnesses in evidence, regarding details which are relevant, are not contradictions and hence, do no affect credibility of the witness.

26)So far as discrepancies in the statements of PW2 Bhoora, PW3 Mst Somi and PW4 Roopa are concerned, it is well settled principle of law that when a witness is subjected to lengthy and arduous cross-examination over a long period of time, there is always all possibilities of his committing mistakes, which can be termed as “omissions, improvements and contradictions”.

27)In Jaishree Yadav v. State of UP (AIR 2004 SC 4443) Hon’ble Apex Court held that those infirmities have to be appreciated in the background of ground-realities, which makes the witness confused because of filibustering techniques of cross-examination.

28)In the present case, it is an established fact that two persons have died due to beating and soon after the incident, First Information Report was lodged at the Police Station and investigation started. So, in the light of above law and the facts of the case, oral statements made by PW4 Roopa s/o Bhupa (deceased), PW2 Bhoora s/o Rata (deceased) and PW3 Mst Somi w/o Bhupa (deceased) made during the investigation vis-a-vis statements made by above witnesses in the court can not be termed as omission in the earlier statement recorded by Police or improvement in the D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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statement made during the course of trial. The maxim “falsus in uno falsus in omnibus” (false in one, false in all) is not followed in Indian courts. In Bher Ram v. State of Haryana (AIR 1980 SC 957), Hon’ble Apex Court held that: “the principle of falsus in uno, falsus in omnibus” does not apply in criminal trials and it is the duty of the court to separate the grain from chaw instead of rejecting the prosecution case in general grounds.”

29)It is an admitted fact that the FIR was lodged against five persons, namely- Kheta, Khuma, Koosa, Mana and Jogla (@ Joma) and Ladu s/o Moti was not made accused in the First Information Report lodged by PW4 Roopa s/o Bhupa (deceased), who is also an eye-witness of the incident. We have examined the effect of non-mention of name of accused in the FIR. It is true that no hard and fast rules or rule of law has been laid down in this respect but it must vary from case to case and the prosecution has to explain satisfactorily as to why name of accused has not been mentioned in the FIR. In the present case, no satisfactory explanation has been given by PW4 Roopa (eye-witness) as well as by the prosecution.

30)As per statements of PW2 Bhoora, accused Koosa was patient of TB and not present at the spot at the time of beating. The facts mentioned by learned trial court in the impugned judgment about accused Ladu and Koosa are as per evidence adduced by the prosecution; as such, we do D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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not find any wrong regarding their acquittal. 31)In the facts, circumstances and evidence available on the record, we do not find any force in the argument advanced by learned counsel for the accused-appellants that co-accused Ladu and Koosa have been acquitted, the evidence against accused-appellants also stands on the same footing and therefore, the accused-appellants also deserve to be acquitted.

32)We have also noticed that all eye-witnesses are close relatives but only on this ground it is wrong to ignore or disbelieve the testimony of the eye-witnesses. There is no rule of law to the effect that evidence of partisan witnesses can not be accepted. Partisanship by itself is no ground to discard a sworn testimony. Relative evidence are not necessarily false evidence. It should, no doubt, to be subjected to careful scrutiny and accepted with caution. 33)In State of Rajasthan v. Kalki & ors (AIR 1981 SC 1390) Hon’ble Apex Court held that:

“Related is not equivalent to interested. A witness may be “interested” only when he or she drives some benefit from the result of the litigation, in the decree in a civil case or in seeing the accused person punished. A witness, who is natural one and is the only possible eye-witness in the circumstances of the case, can not be said to be “interested”.” 34)In Masalti and ors v. State of UP (AIR 1965 SC 202) D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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Hon’ble Apex Court held that:

“There is no doubt that when a criminal court has to appreciate evidence given by the witness, who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not the evidence strikes to the court as genuine, whether or not the story disclosed by the evidence is probable; are all matters which must be taken into account but it would be unreasonable to contend that evidence given by the witness should be discarded merely on the ground that it is evidence of partisan or interested witness. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how must evidence should be appreciated. Judicial approach has to be courteous in dealing with such evidence but the plea that such evidence should be rejected because it is partisan, can not be accepted as correct.” 35)In view of evidence of eye-witnesses PW4 Roopa- who lodged the FIR soon after the incident, PW2 Bhoora and PW3 Mst Somi w/o Bhupa (deceased), who also sustained injuries (Ex.P10) discussed above and also by the lower court in the impugned judgment, commission of offence D.B. Cr. Appeal No.705/2005- Joma & anr v. State of Raj. judgment dt: 03.11.2011

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punishable under sec.302/34 IPC is established beyond any shadow of doubt. In the totality of the prosecution evidence, facts and circumstances of the case; we do not find anything wrong in the findings given by the learned trial court and found that the trial court was fully justified in holding the accused-appellants guilty of committing the alleged offence and sentencing them therefor accordingly. In our opinion, defence version as deposed by DW1 Mana s/o Chopa is not trustworthy, looking to the facts, circumstances and evidence of the prosecution on record. 36)In view of the above, we are of considered opinion that there is no merit in this appeal. The conviction and sentence therefor imposed on the accused-appellants vide judgment dated 30 th November 2004 is legal, just and proper, based on reliable evidence produced by the prosecution and the material on the record.

37)Consequently, present appeal filed by the accused- appellants fails and the same is hereby dismissed accordingly. The conviction as well as sentence made by the court below are affirmed.

[NARENDRA KUMAR JAIN-II],J. [GOVIND MATHUR],J. mma

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